Yadkin Riverkeeper, Inc. v. Duke Energy Carolinas, LLC
141 F. Supp. 3d 428
M.D.N.C.2015Background
- Duke Energy operates the Buck Steam Station on the Yadkin River and historically disposed of coal ash in three large, unlined lagoons that allegedly leak contaminants into groundwater and surface waters.
- Duke holds an NPDES permit (the ‘‘Buck Permit") authorizing specified discharges through certain outfalls; Plaintiffs (Yadkin Riverkeeper and Waterkeeper Alliance) allege additional unpermitted discharges (seeps, an unpermitted pipe) and permit violations.
- North Carolina DENR filed a state-court enforcement action against Duke (including claims about seeps and groundwater standards); Riverkeepers intervened in that state action but also filed this federal citizen suit under the CWA alleging four claims: Seep Claim, Hydrological Connection Claim, Removed Substances Claim, and Dam Safety Claim.
- Relevant regulatory context: North Carolina’s Coal Ash Management Act (CAMA) and the EPA Coal Ash Disposal Rule were enacted after the suit and affect ongoing regulatory proceedings and remediation obligations.
- Duke moved to dismiss (Rule 12(b)(1) and 12(b)(6)) arguing DENR’s diligent prosecution bars the citizen suit, that hydrologically-connected groundwater is outside CWA jurisdiction, that the Removed Substances claim is deficient, and that the Dam Safety claim is not enforceable; Duke also moved to stay the federal case pending administrative/state actions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DENR’s state enforcement bars the Seep and Hydrological Connection claims under §1365(b)(1)(B) (diligent prosecution) | Riverkeepers: DENR has not diligently prosecuted; its state suit is dormant and does not encompass all unpermitted discharges alleged | Duke: DENR’s enforcement seeks the same unpermitted-discharge standards and is diligently prosecuting in state court | Court: DENR’s action was not diligently prosecuted at the time of filing (and remained slow); diligent-prosecution bar does not apply — claims may proceed in federal court |
| Whether the CWA reaches discharges to surface waters that travel via hydrologically-connected groundwater | Riverkeepers: Lagoons are point sources; groundwater is a conduit to navigable waters so the CWA applies | Duke: Groundwater and lagoons are not point sources and CWA does not regulate discharges to groundwater | Court: Lagoons can be point sources; the CWA covers discharges to navigable waters via hydrologically connected groundwater; Hydrological Connection Claim survives |
| Whether the Removed Substances claim (permit provision prohibiting disposal allowing pollutants into waters) is barred by DENR or fails to state a claim | Riverkeepers: Provision applies to materials ‘‘removed in the course of treatment;’’ allegations plausibly allege such removal and improper disposal causing pollution | Duke: DENR already addresses groundwater; plaintiffs fail to allege anything was "removed/disposed" as required | Court: DENR enforces different standards (groundwater regs); plaintiffs plausibly alleged substances were removed in treatment and disposed so claim survives 12(b)(1) and 12(b)(6) challenges |
| Whether the Buck Permit’s dam-safety provision is enforceable by citizen suit (standing/subject matter jurisdiction) | Riverkeepers: Dam-safety is a permit condition and critical to preventing catastrophic releases; citizen suits can enforce permit conditions | Duke: State dam-safety regulations not an ‘‘effluent standard or limitation’’ under CWA; outside CWA reach | Court: Dam-safety provision is a permit condition enforceable under §1365; plaintiffs have standing; Dam Safety Claim survives |
Key Cases Cited
- Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167 (U.S. 2000) (NPDES permits’ limits and noncompliance constitute CWA violations and standing principles)
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (U.S. 1987) (citizen suit framework and limits; role of government enforcement)
- Piney Run Pres. Ass’n v. Cty. Comm’rs, 523 F.3d 453 (4th Cir. 2008) (diligent prosecution presumption and analysis in §1365(b)(1)(B) context)
- Dague v. City of Burlington, 935 F.2d 1343 (2d Cir. 1991) (broad interpretation of “point source” under the CWA)
- Umatilla Water Quality Protective Ass’n v. Smith Frozen Foods, Inc., 962 F.Supp. 1312 (D. Or. 1997) (surface impoundments described as confined/discrete conveyances)
- Hawai’i Wildlife Fund v. County of Maui, 24 F.Supp.3d 980 (D. Haw. 2014) (CWA may cover discharges to surface waters via hydrologically connected groundwater)
- Connecticut Fund for the Environment v. Contract Plating Co., 631 F.Supp. 1291 (D. Conn. 1986) (compare pleadings to determine whether agency suit covers same standards; diligence factors)